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FREE LEGAL AID
The question, whether an accused who on account of his poverty
is unable to afford legal representation for himself in a trial
involving possibility of imprisonment imperilling his personal
liberty, is entitled to free legal aid at State cost and whether
it is obligatory on him to make an application for free legal
assistance or the Magistrate or the Sessions Judge trying him
is bound to inform him that he is entitled to free legal aid and
inquire from him whether he wishes to have a lawyer provided to
him at State cost : if he is not so informed and in consequence
he does not apply for free legal assistance and as a result he
is not represented by any lawyer in the trial and is convicted,
is the conviction vitiated and liable to be set aside, has been
appropriately addressed by the Supreme Court. This question is
extremely important because we have almost 50% population which
is living below the poverty line and around 70% is illiterate
and large sections of people just do not know that if they are
unable to afford legal representation in a criminal trial, they
are entitled to free legal assistance provided to them at State
cost.
It is now well established as a result of the decision of this
Court in Hussainara Khatoon's case (1979) 3 SCR 532 : (AIR 1979
SC 1369) that "the right to free legal service is ..........
clearly an essential ingredient of reasonable, fair and just procedure
for a person accused of an offence and it must be held to be implicit
in the guarantee of Article 21. This is a constitutional right
of every accused person who is unable to engage a lawyer and secure
legal services on account of reasons such as poverty, indigence
or incommunicado situation and the State is under a mandate to
provide a lawyer to an accused person if the circumstances of
the case and the needs of justice so require, provided of course
the accused person does not object to the provision of such lawyer".
The Apex Court pointed out that it is an essential ingredient
of reasonable, fair and just procedure to a prisoner who is to
seek his liberation through the court's process that he should
have legal service available to him. The same view was taken by
a Bench of th Supreme Court earlier in M. H. Hoskot v. State of
Maharashtra, (1978) 3 SCC 544 : (AIR 1978 SC 1548). It may therefore
now be taken as settled law that free legal assistance at State
cost is a fundamental right of a person accused of an offence
which may involve jeopardy to his life or personal liberty and
this fundamental right is implicit in the requirement of reasonable,
fair and just procedure prescribed by Article 21. Of course, it
must be recognised that there may be cases involving offences,
such as, economic offences or offences against law prohibiting
prostitution or child abuse and the like, where social justice
may require that free legal service may not be provided by the
State. There can in the circumstances be no doubt that the appellants
were entitled to free legal assistance at State cost when they
were placed in peril of their personal liberty by reason of being
accused of an offence which if proved would clearly entail imprisonment
for a term of two years.
But the question is whether this fundamental right could lawfully
be denied to the appellants if they did not apply for free legal
aid. Is the exercise of this fundamental right conditioned upon
the accused applying for free legal assistance so that if he does
not make an application for free legal assistance the trial may
lawfully proceed without adequate Legal representation being afforded
to him ? Now it is common knowledge that about 70% of the people
living in rural areas are illiterate and even more than that percentage
of the people are not aware of the rights conferred upon them
by law. Even literate people do not know what are their rights
and entitlements under the law. It is this absence of legal awareness
which is responsible for the deception, exploitation and deprivation
of rights and benefits from which the poor suffer in this land.
Their legal needs always stand to become crisis oriented because
their ignorance prevents them from anticipating legal troubles
and approaching a lawyer for consultation and advice in time and
their poverty magnifies the impact of the legal troubles and difficulties
when they come. Moreover, because of their ignorance and illiteracy,
they cannot become self-reliant : they cannot even help themselves.
The law ceases to be their protector because they do not know
that they are entitled to the protection of the law and they can
avail of the legal service programme for putting an end to their
exploitation and winning their rights. The result is that poverty
becomes with them a condition of total helplessness. This miserable
condition in which the poor find themselves can be alleviated
to some extent by creating legal awareness amongst the poor. That
is why it has always been recognised as one of the principal items
of the programme of the legal aid movement in the country to promote
legal literacy. It would in these circumstances make a mockery
of legal aid if it were to be left to a poor, ignorant and illiterate
accused to ask for free legal services. Legal aid would become
merely a paper promise and it would fail of its purpose. This
is the reason why in Khatri v. State of Bihar (1981) 2 SCR 408
: (AIR 1981 SC 928), we ruled that the Magistrate or the Sessions
Judge before whom an accused appears must be held to be under
an obligation to inform the accused that if he is unable to engage
the services of a lawyer on account of poverty or indigence, he
is entitled to obtain free legal services at the cost of the State.
We deplored that in that case where the accused were blinded prisoners
the Judicial Magistrate failed to discharge his obligation and
contented himself by merely observing that no legal representation
had been asked for by the blinded prisoners and hence none was
provided. We accordingly directed "the Magistrates and Sections
Judges in the country to inform every accused who appears before
them and who is not represented by a lawyer on account of his
poverty or indigence that he is entitled to free legal services
at the cost of the State" unless he is not willing to take
advantage of the free legal services provided by the State. We
also gave a general direction to every State in the country "...........
to make provision for grant of free Legal service to an accused
who is unable to engage a lawyer on account of reasons such as
poverty, indigence or incommunicado situations," the only
qualification being that the offence charged against an accused
is such that, on conviction, it would result in a sentence of
imprisonment and is of such a nature that the circumstances of
the case and the needs of social justice require that he should
be given free legal representations. It is quite possible that
since the trial was held before the learned Additional Deputy
Commissioner prior to the declaration of the law by this Court
in Khatri v. State of Bihar (supra), the learned Additional Deputy
Commissioner did not inform the appellants that if they were not
in a position to engage a lawyer on account of lack of material
resources they were entitled to free legal assistance at State
cost and ask them whether they would like to have free legal aid.
But it is surprising that despite this declaration of the law
in Khatri v. State of Bihar (supra) on 19th December 1980 when
the decision was rendered in that case, the High Court persisted
in taking the view that since the appellants did not make an application
for free legal assistance, no unconstitutionality was involved
in not providing them legal representation at State cost. It is
obvious that in the present case the learned Additional Deputy
Commissioner did not inform the appellants that they were entitled
to free legal assistance and inquire from them whether they wanted
a Lawyer to be provided to them at State cost. The result was
that the appellants remained unrepresented by a lawyer and the
trial ultimately resulted in their conviction. This was clearly
a valuation of the fundamental right of the appellants under Article
21 and the trial must accordingly be held to be vitiated on account
of a fatal constitutional infirmity, and the conviction and sentence
recorded against the appellants must be set aside.
[Suk Das vs. Union Territory Of Arunachal Pradesh; 1986-(092)-CRLJ
-1084 –SC]
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